THG 
UNIYSRSITY  Oe  CALlfORNlfl 
LIBRARY 


Digitized  by  tine  Internet  Arciiive 

in  2007  witii  funding  from 

IVIicrosoft  Corporation 


littp://www.archive.org/details/draftconventionfOOmarbrich 


DRAFT  CONVENTION 

FOR 
LEAGUE  OF  NATIONS 


THE  MACMILLAN  COMPANY 

KBW  YORK  •   BOSTON  •  CHICAGO  •  DALLAS 
ATLANTA  *   SAN  FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON  •  BOMBAY  •  CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltdu 

TORONTO 


DRAFT  CONVENTION 

FOR 

LEAGUE  OF  NATIONS 


BY 

GROUP  OF  AMERICAN  JURISTS 

AND  PUBLICISTS 


DESCRIPTION  AND  COMMENT 
BY 

THEODORE  MARBURG 


flew  lotft 

THE  MACMILLAN  COMPANY 

1918 

All  rights  reserved 


5^> 

V 


0i 
4 


Persons  Who  are  Willing  to  Have 
Their  Names  Appear  as  Members  of 
THE  Stuby  Group  which  Elaborated 
THE  Draft  Convention  ^ 

George  Louis  Beer 
Major  John  Bigelow 
Edwin  M.  Borchard 
Elmer  Ellsworth  Brown 
John  Bates  Clark 
William  C.  Dennis 
Saml.  T.  Dutton 
John  H.  Finley 
Harry  A.  Garfield 
Franklin  H.  Giddings 
Robert  Goldsmith 
Judge  George  C.  Holt 
Hamilton  Holt 
Jeremiah  W.  Jenks 
Leo  S.  Rowe 
Judge  Wm.  H.  Wadhams 
Eugene  Wambaugh 
Everett  P.  Wheeler 
Thos.  Raeburn  White 
George  G.  Wilson 
Theodore  Marburg,  Chairman. 

1  In  view  of  the  fact  that  the  work  is  com- 
posite in  nature,  no  single  person  can  be  re- 
garded as  necessarily  endorsing  every  detail  of 
the  tentative  Convention. 


FOREWORD 

AFTER  the  Allies  had  formally  and 
officially  committed  themselves  — 
in  their  masterly  reply  to  President  Wil- 
son January  10,  1917  —  to  the  principle 
of  a  league  of  nations  to  discourage  fu- 
ture wars,  manifestly  the  next  important 
step  was  to  find  out  what  kind  of  a  league 
they  would  accept.  Now,  the  most  di- 
rect way  in  which  to  attack  that  problem 
is  to  frame  an  actual  Draft  Convention 
for  their  consideration.  With  this  ob- 
ject in  view  a  private  Study  Group,  com- 
posed of  American  jurists  and  publicists, 
examined  the  subject  at 'ten  meetings  of 
the  principal  committee,  supplemented 
by  serious  study  by  sub-committees, 
through  the  period  of  a  year.  It  is 
thought  useful  to  give  out  the  results  of 
their  labours  at  this  time.  The  Draft 
Convention  is  based  on  the  program  of 
the  League  to  Enforce  Peace,  the  prin- 
cipal aim  of  which  is  to  compel  inquiry 
before  nations  are  allowed  to  go  to  war. 
The  States  of  the  League  agree  to  make 


FOREWORD 

war,  swift  and  immediate,  on  any  nation 
which    violates    this    fundamental    pro- 


1  It  will  be  noted  that  the  tentative  Draft  Con- 
vention, which  had  its  origin  in  a  sketch  sub- 
mitted by  George  Grafton  Wilson,  has  under- 
gone considerable  development  and  change  since 
the  author  was  privileged  to  give  a  description 
of  it  in  his  book  "League  of  Nations." 


DESCRIPTION  AND 
COMMENT 


DRAFT  CONVENTION 

DESCRIPTION   AND   COMMENT  ^ 

MINISTRY 

THE  chief  executive  organ  of  the 
League  is  a  Ministry  of  five,  ap- 
pointed out  of,  and  by,  an  International 
Council  and  responsible  to,  and  removable 
by,  the  Council.  The  executive  powers 
of  the  Council  are  vested  in  this  Ministry, 
which  shall,  in  fact,  possess  all  the  powers 
of  the  Council  when  the  latter  is  not  in 
session,  save  one,  namely,  the  power  to 
make  laws  for  the  League.  The  Minis- 
try is  to  keep  a  close  watch  on  interna- 
tional developments  with  a  view  to  fore- 
stalling difficulties.  While  having  no 
power  to  interfere  in  the  internal  affairs 
of  a  State,  it  may  offer  its  own  services 
or  those  of  any  tribunal  of  the  League  in 
order  to  prevent  internal  disturbances 
from  leading  to  international  complica- 
tions. It  may  itself  entertain  com- 
plaints or  initiate  investigations  or  may 

1  Reprinted  from  the  Journal  of  the  Society  of 
Comparative  Legislation,  London. 


2  DRAFT  CONVENTION 

pass  up  questions  to  the  Council  or  the 
Court,  or  to  any  of  the  existing  institu- 
tions at  The  Hague,  provided  that  the 
parties  to  the  dispute,  if  they  so  elect, 
may  themselves  designate  the  tribunal  to 
which  the  dispute  is  to  be  referred. 

It  will  be  observed  that  there  is  no  idea 
of  ignoring  the  existing  institutions  at 
The  Hague,  so  highly  useful.  On  the 
contrary,  the  League  will  lean  upon  them 
as  much  as  possible  and  co-operate  in 
developing  them. 

Permanent  session  is  prescribed  for  the 
Ministry.  This  means  that  we  shall  have 
sitting  constantly  at  The  Hague  five  men, 
presumably  of  international  reputation 
—  preferably  men  who  have  held  impor- 
tant office  —  always  in  intimate  con- 
tact and  conference,  keeping  close  watch 
on  international  developments,  and 
ready  at  all  times  to  act  on  a  moment's 
notice.  They  would  necessarily  acquire 
an  exceptional  knowledge  of  interna- 
tional conditions  and  would  speak  with 
authority.  Who  can  measure  the  far- 
reaching  results  of  such  an  institution? 

When,  on  the  recommendation  of  the 
International  Council,  the  use  of  military 
force  shall  have  been  determined  by  fa- 


COMMENT  S 

vourable  action  on  the  part  of  the  States 
of  the  League  known  as  the  Great  Pow- 
ers, the  Ministry  shall  proceed  to  appoint 
a  War  Council  and  take  such  other  steps 
as  are  necessary  to  carry  into  execution 
the  provisions  of  the  treaty. 

INTERNATIONAL    COURT 

When  it  was  suggested  to  home  and 
foreign  jurists  that  a  Court  on  the  lines 
of  the  Court  of  Arbitral  Justice,  ac- 
cepted in  principle  by  the  Second  Hague 
Conference,  was  the  institution  required 
by  the  League,  objection  was  made  that 
the  provisions  in  the  Hague  Convention 
were  not  broad  enough  and  that  the 
Court  proposed  in  that  convention  would 
not  meet  the  needs  of  the  League.  The 
question  was  accordingly  gone  into  afresh 
with  the  result  that  a  Court  of  larger 
powers  is  here  planned. 

The  Court  is  to  consist  of  fifteen 
judges,  no  two  of  whom  "  shall  be  con- 
nected with  any  one  country  either  by 
birth,  or  as  citizen  or  subject.''  But 
they  may  be  taken  from  States  without, 
as  well  as  within,  the  League.  They  are 
to  reside  permanently  at  the  seat  of  the 


4  DRAFT  CONVENTION 

Court,  which  is  fixed  at  The  Hague,  so 
that  the  world  may  have  the  benefit  of 
the  constant  association  of  these  men 
of  kindred  aims  and  duties.  The  ap- 
pointments are  for  life,  with  retirement 
at  the  age  of  seventy  on  pension. 

It  will  be  remembered  that  the  Hague 
Conference  found  it  impossible  to  reach 
an  agreement  on  the  method  of  appoint- 
ing the  judges  for  the  Court  of  Arbitral 
Justice.  Agreement  on  the  constitution 
of  the  Prize  Court  —  a  permanent  judge 
to  each  of  the  eight  Great  Powers  and 
only  seven  judges  to  represent  by  rota 
the  remaining  States,  thirty-six  in  num- 
ber, which  participated  in  the  Second 
Hague  Conference  —  was  made  possible 
by  the  fact  that  the  smaller  States  have 
insignificant  mercantile  marines  and  were 
not  concerned  over  the  questions  likely  to 
come  before  a  Prize  Court.  When  it 
came  to  the  matter  of  the  composition  of 
a  Court  of  Justice,  however,  the  smaller 
States  manifested  a  very  lively  interest 
and  insisted  on  having  each  its  own  rep- 
resentative on  the  Court.  This  would 
have  produced  a  Judicial  Assembly  in- 
stead of  a  Court  and  was  manifestly  im- 
practicable. 


COMMENT  5 

The  present  Draft  Convention  en- 
deavours to  solve  this  difficult  problem 
through  the  instrumentality  of  an  As- 
sembly of  Judicial  Electors.  Each 
State  of  the  League  is  entitled  to  three 
electors,  appointed  in  such  manner  as 
it  may  determine.  They  are  to  meet  at 
The  Hague  on  a  given  day  after  nine 
Powers  have  ratified  the  convention  and 
shall  proceed  to  elect  the  judges  of  the 
Court  from  among  candidates  nominated 
either  by  the  electors  themselves  or  by 
the  States  of  the  League.  A  preferen- 
tial system  of  voting  may  be  established ; 
if  not,  the  voting  shall  be  by  absolute 
majority  rule. 

On  this  subject  it  may  be  said  that 
while  the  Great  Powers,  having  more  at 
stake,  are  much  more  concerned  with  the 
successful  and  impartial  functioning  of 
the  Court  than  the  smaller  Powers,  there 
is  no  reason  why  the  Court,  chosen  in 
the  manner  indicated,  should  not  prove 
highly  successful  and  therefore  satis- 
factory to  the  Great  Powers.  This  sys- 
tem, it  will  be  noted,  avoids  direct  ap- 
pointment. And  impartiality  of  deci- 
sions is  further  favoured  by  the  provision 
that  no  judge  shall  sit  in  a  matter  "  in 


6  DRAFT  CONVENTION 

which  a  State  whereof  he  is  a  native  or 
citizen  or  subject  is  a  litigant." 

The  competence  of  the  Court  extends 
to  disputes  of  a  justiciable  nature  aris- 
ing between  States  whether  or  not  mem- 
bers of  the  League,  to  disputes  between 
corporations  or  individuals  on  the  one 
side  and  States  on  the  other,  and  even  to 
disputes  between  corporations  and  indi- 
viduals provided  the  dispute  is  of  inter- 
national consequence.  It  is  for  the 
Court  itself  to  determine  whether  a  dis- 
pute brought  before  it  is  justiciable. 

"  The  doctrines  of  law  recognized  and 
applied  by  the  International  Court  shall 
be  those  which  in  or  under  future  conven- 
tions may  be  provided  by  the  States  of 
the  League  or  those  which  may  be  agreed 
upon  by  the  very  litigants;  and  in  the 
absence  of  such  general  provision  or  spe- 
cial agreement  the  Court  shall  follow 
its  own  theory  of  justice  except  in  so  far 
as  doctrines  have  been  established  by 
general  international  law  or  have  been 
embodied  in  the  Hague  Convention  of 
1907." 

Provision  is  made  for  written  decrees, 
accompanied  by  written  opinions,  which 
shall  specify  "  what  judges  agree  with 


COMMENT  7 

it,  what  judges  concur  in  the  decree  on 
other  grounds,  and  what  judges  dis- 
sent." 

One  of  the  most  far-reaching  and 
potent  powers  granted  the  Court  is  that 
of  injunction.  The  Court  is  the  only 
organ  of  the  League  which  can  actually 
issue  such  injunction,  though  it  shall 
issue  it  not  only  of  its  own  motion 
but  also,  for  reason,  on  application  of 
one  of  two  other  organs  of  the  League, 
namely,  the  Council  of  Conciliation  or 
the  Ministry.  And  these  latter  may  ap- 
ply for  it  in  connection  with  matters 
pending  before  any  international  tribu- 
nal even  though  these  tribunals  be  not 
organs  of  the  League.  Thus,  in  cases 
before  the  Permanent  Court  of  Arbitra- 
tion at  The  Hague,  before  the  Interna- 
tional Commission  of  Inquiry,  or  before 
an  arbitration  specially  instituted,  the 
States  of  the  League  may  secure  them- 
selves, pending  the  inquiry,  against  con- 
tinuing injury  or  possible  future  injury 
which  would  be  irreparable  or  which 
would  impair  the  value  of  the  tribunal's 
prospective  decision.  Such  a  provision 
does  not  impair  the  principle  that  the 
States  of  the  League  can  bind  only  them- 


8  DRAFT  CONVENTION 

selves  by  the  agreement  because,  while 
the  injunction  extends  to  tribunals  other 
than  their  own,  it  applies  only  to  States 
of  the  League,  which  manifestly  may 
provide  by  treaty  any  rules  which  they 
see  fit  to  provide.  This  power  of  in- 
junction will  prove  even  more  valuable 
in  non-justiciable  cases  than  in  cases 
which  are  within  the  jurisdiction  of  the 
Court,  for  it  is  the  former  class  of  cases, 
namely,  conflicts  of  political  policy, 
which  give  rise  to  war.  Such  conflicts 
often  involve  momentous  issues,  pending 
inquiry  into  which  a  country  would  want 
to  be  made  secure  against  continuing 
and  possibly  irreparable  injury. 

INTERNATIONAL    COUNCIL 

The  International  Council  is  to  con- 
sist of  three  members  from  each  of  the 
Great  Powers  that  may  become  States 
of  the  League  and  one  member  from  each 
of  the  secondary  Powers.  They  are  to 
be  the  direct  representatives  of  the  ap- 
pointing State  and  recallable  at  its 
pleasure.  It  is  presumed  that  they  will 
be  in  close  contact  with  the  Foreign 
Office  of  the  appointing  State,  in  order 
both  to  keep  it  informed  and,  themselves. 


COMMENT  9 

to  receive  instructions  from  it.  The 
unanimity  rule  which  obtained  in  the 
Hague  Conferences  is  abandoned;  reso- 
lutions of  the  Council  are  by  absolute 
majority.  It  shall  institute  a  secre- 
tarial bureau  and  appoint  a  secretary  to 
be  known  as  the  secretary  of  the  League, 
and  "  shall  institute  such  other  depart- 
ments and  appoint  such  other  officers 
and  assistants  as  may  be  necessary  to 
conduct  the  business  of  the  League  and 
shall  fix  their  salaries." 

An  important  duty  of  the  Council  is 
that  of  examining  "  social,  economic,  and 
other  conditions  affecting  international 
relations  "  and  of  making  annual  reports 
and  recommendations  thereon.  It  shall 
make  rules  for  the  functioning  of  the 
League  just  as  a  department  of  the  Gov- 
ernment makes  rules  under  the  statute 
law  and  under  the  Constitution.  It  shall 
also,  by  two-thirds  majority,  both  make 
laws  for  the  States  of  the  League  and 
reconmiend  changes  in  the  Constitution 
of  the  League  provided  that  such  laws 
and  constitutional  changes  shall  be  bind- 
ing on  a  State  of  the  League  only  in  case 
it  has  not  signified  its  dissent  within  the 
period  of  a  year. 


10  DRAFT  CONVENTION 

It  is  felt  that  the  world  is  not  ready 
for  a  super-State,  that  the  impairment 
of  sovereignty  which  the  League  sets  up 
must  not  extend  to  the  point  actually  of 
empowering  a  central  body  to  make  laws 
for  the  League  without  giving  each  State 
the  right  to  veto  them.  When,  under  the 
system  existing  at  present,  an  interna- 
tional convention  is  agreed  upon  by  the 
Powers,  it  becomes  operative,  as  is  well 
known,  only  against  the  States  which 
may  ratify  it.  The  situation  under  the 
proposed  League  would  be  analogous 
though  not  identical.  The  laws  enacted 
by  the  International  Council  would  be 
operative  only  as  against  the  States 
which  may  have  failed  to  signify  their 
dissent  within  the  period  specified. 

The  International  Council  has  power 
to  declare  when  conditions  have  arisen 
which  call  for  the  use  of  force  by  the 
League,  each  State  thereafter  determin- 
ing for  itself  whether  or  not  it  will  live 
up  to  its  obligations  under  the  treaty 
and  proceed  either  to  declare  war  on  the 
recalcitrant  member  or,  in  the  case  of  a 
minor  incident,  to  furnish  its  quota  to 
an  international  force  without  the  for- 


COMMENT  11 

mality  of  a  declaration  of  war.  Some 
publicists  hold  that  a  central  organ  of 
the  League  should  have  power  actually 
to  declare  war  in  the  name  of  the  League 
so  as  to  insure  prompt  action.  The  dif- 
ficulty encountered  in  trying  to  meet  this 
suggestion  was  the  constitutional  pro- 
vision of  certain  countries  that  the 
Legislature  alone  may  declare  war. 

It  is,  however,  a  serious  question 
whether  this  power  to  declare  that  the 
conditions  have  arisen  calling  for  the  use 
of  force  against  a  recalcitrant  member 
should  remain  with  the  Council,  com- 
posed of  a  relatively  large  number  of  men 
and  therefore  slower  to  act,  or  whether  it 
should  be  lodged  in  the  Ministry. 

The  argument  for  placing  it  with  the 
Ministry  is  that  war,  once  begun  in 
earnest,  is  hard  to  stop  and  that  swift 
and  immediate  action  is  required  in  or- 
der to  prevent  untoward  incidents  from 
flaming  up  into  actual  war.  It  is  urged 
further  that  what  is  desired  is  not  only 
swift  action  but  the  previous  assurance 
of  swift  action  as  well,  so  that  a  nation 
inclined  to  aggression  may  not  be  dis- 
posed to  take  the  chances  of  delay  and 


12  DRAFT  CONVENTION 

possible  disagreement  of  the  central  or- 
gan of  the  League  and  so  be  led  to  pro- 
ceed with  its  aggressive  plans. 

It  is  argued,  on  the  other  hand,  that 
the  consent  of  each  State  of  the  League 
to  the  proposed  war  measure  will  be 
more  readily  secured  if  the  question  has 
been  considered  and  passed  upon  by  the 
International  Council,  embracing  repre- 
sentatives of  all  the  States  of  the  League, 
that  each  State  will  be  more  reconciled 
to  a  decision  in  which  its  own  representa- 
tive has  participated,  and  that  final  ac- 
tion will  therefore  be  equally  swift. 
These  arguments  should  be  carefully 
weighed.  The  power  in  question,  it  must 
be  remembered,  is  only  recommendatory: 
not  the  power  to  declare  war,  but  simply 
to  make  a  statement  of  fact  —  the  fact 
that  a  State  of  the  League  has  com- 
mitted acts  of  hostility  against  a  fellow 
signatory.  But  it  involves  momentous 
consequences  which  touch  the  basic  idea 
of  the  League.  The  lodgment  of  the 
function  in  the  proper  quarter  is  there- 
fore of  the  highest  importance. 

Another  power  conferred  on  the  Coun- 
cil is  that  of  calling  periodic  interna- 
tional  conferences    "  to   formulate    and 


COMMENT  18 

codif  J  rules  of  international  law  and  to 
recommend  to  them  desirable  measures." 

It  is  safe  to  infer  that  laws  made  by 
the  International  Council  and  accepted 
by  the  States  of  the  League  will  in  time 
become  law  for  the  world  because  the  im- 
portant States  of  the  world  will  be  mem- 
bers of  the  League  and  the  influence  of 
their  example,  if  nothing  else,  will  tend 
to  bring  about  this  result.  But  at  the 
same  time  it  is  only  fair  that  in  the  mak- 
ing of  laws,  which  are  to  be  immediately 
or  ultimately  laws  for  the  world,  all  the 
world  should  be  allowed  to  participate. 
In  order  to  meet  this  need,  the  Draft 
Convention,  as  we  shall  see,  likewise  sets 
up  international  conferences  to  which 
practically  all  States,  whether  or  not 
members  of  the  League,  are  to  be  ad- 
mitted and  which  shall  be  charged  with 
the  duty  of  codifying  and  developing  in- 
ternational law. 

The  International  Council  is  also 
charged  with  the  duty  of  appointing  the 
Ministry,  which  is  its  executive  com- 
mittee. 


14  DRAFT  CONVENTION 


COUNCIL    OF    CONCILIATION 

The  important  function  of  concilia- 
tion is  to  be  dealt  with  by  a  section  of 
the  International  Council  known  as  the 
Council  of  Conciliation.  This  section  is 
not  appointed  by  the  Council  itself:  the 
individual  States,  in  appointing  members 
to  the  International  Council,  each  desig- 
nate one  member  as  the  member  for  con- 
ciliation. This  of  course  makes  a  very 
large  Council  of  Conciliation  but  it  of- 
fers the  advantage  of  enabling  the  mem- 
bers to  group  themselves  in  sections  and 
it  is  not  presumed  that  they  will  all  act 
at  one  time.  In  fact,  it  is  necessary  that 
the  bulk  of  them  should  be  left  free  for 
the  general  work  of  the  International 
Council  since  the  minor  Powers  each  send 
only  one  representative  to  the  Interna- 
tional Council  and  all  of  their  represen- 
tatives are  therefore,  at  the  same  time, 
members  for  conciliation.  This  may 
seem  a  crude  arrangement,  but  it  has  an 
object,  namely,  that  the  Council  of  Con- 
ciliation itself  may  be  of  changing,  in- 
stead of  fixed,  personnel. 

Now,  a  Court,  passing  upon  questions 


COMMENT  15 

of  law  and  equity,  ought  to  be  of  fixed 
personnel.  Its  principal  duty  is  to  in- 
terpret and  apply  the  law  and  accepted 
practices.  Permanent  composition  is 
desirable  in  order  to  insure  proper 
familiarity  with  the  law  and  continuity 
of  decisions.  Such  a  Court,  if  com- 
posed of  the  right  men,  would  only  grow 
in  prestige  and  influence  from  year  to 
year. 

Conciliation,  on  the  other  hand,  is 
based  on  the  principle  of  compromise, 
which  leaves  one  or  both  parties  to  the 
controversy  with  a  sense  that  they  have 
not  gotten  all  that  was  due  them.  One 
can  therefore  well  understand  how,  when 
a  dispute  arises,  a  nation  may  object  to 
the  presence  of  an  individual  who  has  sat 
in  a  previous  case  in  which  it  or  its 
friends  may  have  f aUed  to  secure  all  that 
was  contended  for.  A  fluctuating  per- 
sonnel on  the  part  of  the  Council  of  Con- 
ciliation may  therefore  not  be  a  disad- 
vantage. 

The  function  of  the  Council  of  Con- 
ciliation is  of  course  to  hear  and  pass 
upon  non-justiciable  questions.  It  may 
secure,  through  the  Court,  an  injunc- 
tion in  connection  with  proceedings  be- 


16  DRAFT  CONVENTION 

fore  it.  As  indicated,  it  has  power  to 
institute  sections  of  its  own  members, 
and  the  recommendation  of  such  a  sec- 
tion '^  shall  be  the  recommendation  of  the 
Council  of  Conciliation  unless  a  litigant 
dissents,"  in  which  latter  case  the  ques- 
tion shall  be  heard  by  the  full  Council. 
The  Council  is  required  to  make  and  file 
recommendations  and  opinions. 

GENERAL    PROVISIONS 

The  seat  of  both  the  International 
Court  and  the  International  Council  are 
to  be  at  The  Hague  and  their  members 
shall  enjoy  diplomatic  privileges.  They 
are  forbidden  to  hold  other  office  or  to 
engage  in  business  or  to  receive  any  com- 
pensation other  than  their  salaries. 
Both  bodies,  their  committees,  and  sec- 
tions, "  shall  have  power  to  make  requi- 
sition upon  States  of  the  League  for  in- 
formation and  to  call  upon  them  to  se- 
cure the  attendance  of  witnesses." 
They  can  also  summon  a  State  of  the 
League  to  appear  and  answer  a  com- 
plaint. Their  recommendations  and  de- 
cisions must  be  made  within  one  year 
from  the  time  the  question  is  submitted, 


COMMENT  17 

unless  the  parties,  by  agreement,  extend 
the  time. 

The  States  of  the  League  will  share 
the  expenses  of  the  International  Coun- 
cil and  the  International  Court  in  pro- 
portion to  social  income.  No  costs,  re- 
cording or  other  fees,  may  be  levied 
against  a  litigant  either  by  the  Council 
or  the  Court.  The  object  of  this  is  to 
induce  all  the  world  to  make  use  of  these 
institutions.  It  is  presumed  that  the 
backward  nations  will  not  be  admitted  to 
the  League  and  will  therefore  have  no 
representatives  on  the  Council  of  Con- 
ciliation. Disputes  arising  between 
them  or  over  them  are,  however,  costly 
to  other  Powers  and  not  infrequently  a 
source  of  war  between  other  Powers.  It 
is  therefore  desirable  that  they  should  be 
induced  to  bring  their  disputes  of  a  non- 
justiciable nature  before  the  Council  of 
Conciliation,  and  the  League  should  be 
quite  willing  to  incur  the  expense  there- 
of in  the  general  interest. 

In  the  organization  of  the  Interna- 
tional Court,  however,  all  nations  may 
participate  and  it  might  seem  unfair  to 
permit  them  to  bring  their  cases  before 
it  without  exercising  that  right  and  shar- 


18  DRAFT  CONVENTION 

ing  its  expenses.  But  here  again  ex- 
pediency would  dictate  a  liberal  policy 
toward  non-members,  it  being  presumed 
that  a  sense  of  right  will  in  time  lead 
nations  which  use  the  Court  to  adhere 
to  the  convention  and  share  in  the  ex- 
penses of  the  institution. 

INTERNATIONAL    CONFERENCES 

In  addition  to  the  International  Coun- 
cil which,  it  will  be  remembered,  has 
power  to  make  binding  rules  for  the 
League  and  to  make  laws  ad  referendum 
for  the  States  of  the  League,  it  is  de- 
sirable that  there  should  be  an  interna- 
tional body  to  codify  and  develop  inter- 
national law  and  to  which,  therefore, 
practically  all  the  nations  of  the  world 
should  be  admitted.  The  acts  of  this 
body,  like  the  acts  of  the  International 
Council,  are  made  subject  to  veto  within 
the  period  of  one  year  by  the  States  par- 
ticipating in  it. 

To  convey  the  impression  that  this  or 
any  other  body  has  a  right  to  make  bind- 
ing law  for  the  world  would  be  harmful, 
and  it  is  therefore  desirable  to  avoid  the 
use  of  the  term  "  legislature."     The  in- 


COMMENT  19 

stitution  has  accordingly  been  given  the 
conservative  name  of  "  International 
Conference."  At  present  it  is  connected 
with  the  League  by  a  very  thin  thread: 
it  is  called  and  dissolved  by  the  League. 
In  the  beginning  it  will  simply  carry 
on  the  work  of  the  Hague  Conferences 
and  of  the  Interparliamentary  Union. 
Its  usefulness  and  consequently  its  pow- 
ers should,  however,  increase  until,  in 
course  of  time,  it  becomes  a  real  and  im- 
portant organ  of  the  League. 


TEXT  OF  DRAFT 
CONVENTION  ' 

1  The  Draft  Convention  was  laid  before  the 
New  York  Bar  Association  at  its  annual  meet- 
ing on  January  11,  1918,  by  Everett  P.  Wheeler, 
was  described  in  the  New  York  Times  of  the 
following  day,  and  was  printed  in  full  in  the 
Independent  (New  York)  January  26,  1918. 


Article  I 


COVENANT 


Sec.  1.  The  high  contracting  par- 
ties, being  the  undersigned  States  and 
the  States  becoming  parties  to  this  Con- 
vention, hereinafter  called  the  States  of 
the  League,  agree  that  all  disputes  be- 
tween them  of  every  nature  whatsoever, 
which  diplomacy  or  existing  and  future 
treaties  and  institutions  for  mediation, 
inquiry  or  arbitration  other  than  those 
of  the  League  shall  have  failed  to  adjust, 
shall  be  submitted  to  the  International 
Court,  to  be  constituted  in  the  manner 
prescribed  in  Article  III  of  this  Con- 
vention, for  decision,  if  the  question  is 
justiciable  in  nature;  or  to  the  Council 
of  Conciliation,  to  be  constituted  in  the 
manner  prescribed  in  Article  II  of  this 
Convention,  for  recommendation,  if  the 
question  is  non- justiciable  in  nature. 

Sec.  2.  The  high  contracting  parties 
agree  not  to  declare  war  or  begin  hostili- 
ties against  another  State  of  the  League 
23 


24  DRAFT  CONVENTION 

until  any  question  in  dispute  has  been 
submitted  for  inquiry  and  hearing  and 
until  the  decision  of  the  Court  or  the 
recommendation  of  the  Council  shall 
have  been  made,  or  until  the  time  for 
making  such  decision  or  recommendation 
as  provided  in  this  Convention  shall  have 
elapsed,  or  if  the  decision  of  the  Court 
or  the  recommendation  of  the  Council,  as 
the  case  may  be,  shall  have  been  made 
within  said  time,  then  until  six  months 
shall  have  elapsed  after  the  making  of 
such  decision  or  recommendation. 

Sec.  "3.  The  high  contracting  parties 
agree  to  use  their  economic  and  military 
forces  against  any  State  of  the  League 
that  declares  war  or  begins  hostilities  in 
violation  of  this  Convention. 

Sec.  4.  The  high  contracting  parties 
agree  to  co-operate  in  the  promotion  of 
friendly  relations  between  States  and, 
with  this  object  in  view,  to  call,  at  least 
once  in  every  five  years.  International 
Conferences  to  formulate  and  develop  in- 
ternational law. 


TEXT  25 

Aeticus  II 


Sec.  5.  The  International  Council 
shall  be  constituted  of  members  chosen 
by  each  State  of  the  League  in  such  man- 
ner as  each  State  shall  determine,  to 
hold  office  during  the  pleasure  of  the 
appointing  State,  provided  that  each  of 
the  States  now  known  as  the  Great  Pow- 
ers, viz.,  Austria-Hungary,  British  Em- 
pire, France,  Germany,  Italy,  Japan, 
Russia  and  the  United  States,  which 
shall  become  a  State  of  the  League,  shall 
be  entitled  to  three  members  and  each 
of  the  other  States  of  the  League  shall 
be  entitled  to  one  member. 

Sec.  6.  The  International  Council 
shall  always  be  complete  and  in  being. 
When  a  vacancy  occurs  in  the  represen- 
tation of  any  State  of  the  League  such 
State  shall  take  the  necessary  steps  to 
cause  the  vacancy  to  be  filled. 

Sec.    7.     The   International    Council 

1  The  draft  for  the  International  Council,  elab- 
orated after  the  article  relating  to  the  Court  had 
been  framed,  was  drawn  by  a  committee  con- 
sisting of  William  H.  Wadhams,  George  Louis 
Beer,  Hamilton  Holt,  and  Robert  Goldsmith. 


£6  DRAFT  CONVENTION 

shall  be  the  judge  of  the  right  of  any 
member  to  take  his  seat  in  the  Interna- 
tional Council. 

Sec.  8.  The  International  Council 
shall  choose  from  its  members  a  president 
and  other  officers. 

Sec.  9.  A  majority  of  the  members 
of  the  International  Council  shall  con^ 
stitute  a  quorum  to  do  business,  but  a 
smaller  number  may  adjourn  from  day 
to  day  and  may  compel  the  attendance 
of  absent  members  in  such  manner  and 
under  such  penalties  as  the  International 
Council  may  prescribe. 

Sec.  10.  The  International  Council 
may  determine  the  rules  of  its  proceed- 
ings. 

Sec.  11.  Members  of  the  Interna- 
tional Council  shall  each  receive  an  an- 
nual salary,  to  be  determined  by  the  In- 
ternational Council,  of  not  less  than 
twenty-five  thousand  dollars,  excepting 
that  the  members  of  the  Ministry  and  the 
members  designated  for  conciliation 
shall  receive  such  additional  sum  as  the 
International  Council  may  determine. 

Sec.  is.  The  first  meeting  of  the  In- 
ternational Council  shall  be  held  at  The 
Hague  at  noon  on  the  first  Monday  of 


TEXT  27 

the  sixth  month  after  nine  States,  of 
which  at  least  four  shall  be  Great  Pow- 
ers, have  ratified  this  Convention  and  the 
International  Council  shall  assemble  an- 
nually thereafter  on  the  first  Monday  in 
October,  unless  it  shall  appoint  a  differ- 
ent day. 

Sec.  13.  Resolutions  of  the  Interna- 
tional Council  shall  be  passed  only  upon 
the  concurrence  of  an  absolute  majority 
of  all  the  members  of  the  International 
Council. 

Sec.  14.  The  International  Council 
shall  keep  a  record  of  the  proceedings 
and  debates  and,  from  time  to  time,  shall 
publish  the  same  in  an  Official  Journal, 
excepting  such  parts  as  may  in  its  dis- 
cretion require  secrecy,  and  the  Ayes  and 
Nays  of  the  members  on  any  question 
shall,  at  the  desire  of  one-fifth  of  those 
present,  be  entered  on  the  Journal. 

Sec.  15.  The  International  Council 
shall  institute  a  Secretarial  Bureau  and 
shall  appoint  a  Secretary  thereof,  who 
shall  be  known  as  the  Secretary  of  the 
League,  and  also  shall  institute  such 
other  Departments  and  appoint  such 
other  officers  and  assistants  as  may 
be  necessary  to  conduct  the  business  of 


28  DRAFT  CONVENTION 

the  League  and  shall  fix  their  salaries.^ 

Sec.  16.  A  question  in  dispute  shall 
be  deemed  submitted  when  a  written  com- 
plaint shall  have  been  filed  with  the 
Secretarial  Bureau ;  a  decision  or  recom- 
mendation shall  be  deemed  to  have  been 
made  when  the  same  shall  have  been  filed 
with  the  Secretarial  Bureau. 

Sec.  17.  The  International  Council 
shall  examine  social,  economic,  political, 
and  other  conditions  affecting  interna- 
tional relations  and  shall  make  an  an- 
nual report  thereon,  together  with  its 
recommendations,  to  the  States  of  the 
League,  and,  from  time  to  time,  it  shall 
also  make  such  other  reports  and  recom- 
mendations as  it  shall  deem  necessary 
and  expedient. 

Sec.  18.  The  International  Council 
shall  make  rules  for  the  functioning  of 
the  League. 

Sec.  19.  The  International  Council 
shall  have  power  to  propose  measures 
which  shall  be  the  law  as  between  the 
States  of  the  League,  and  to  recommend 
amendment  of  this  Convention,  upon  the 
concurrence  of  two-thirds  of  all  the  mem- 

1  See  "  Amplification  of  the  Covenant,"  Notes 
I  and  II  in  the  Appendix. 


TEXT  29 

bers  of  the  International  Council,  pro- 
vided that  such  measures  and  amend- 
ments shall  become  effective  one  year 
from  the  date  thereof  unless  a  State  of 
the  League  signifies  its  dissent  within 
said  period. 

Sec.  20.  The  International  Council 
shall  have  power  to  determine  that  a 
State  of  the  League  has  declared  war,  or 
begun  hostilities,  or  committed  other  acts 
in  violation  of  this  Convention,  and  it 
shall  forthwith  notify  this  condition  to 
the  States  of  the  League,  which  shall 
thereupon,  each  for  itself,  declare  war 
upon  the  recalcitrant  member,  or  in  the 
case  of  a  minor  instance  supply  its  mili- 
tary quota  to  the  International  Force. 

Sec.  21.  The  International  Council 
shall  have  the  power  to  call  periodic  and 
special  International  Conferences  to  for- 
mulate and  codify  rules  of  international 
law,  and  shall  furnish  such  Conferences 
such  information  and  recommend  for 
their  consideration  such  measures  as  it 
shall  deem  necessary  and  expedient. 

Sec.  22.  The  International  Council 
shall  have  power  to  appoint  or  elect  an 
Executive  Committee,  to  be  known  as  the 
Ministry,   and   other   committees   of  its 


so  DRAFT  CONVENTION 

own  members,  and  also  special  commit- 
tees which  may  or  may  not  be  composed 
exclusively  of  its  own  members. 

MINISTRY 

Sec.  23.  The  Ministry  shall  be  con- 
stituted of  five  members  of  the  Interna- 
tional Council  appointed  or  elected  in 
such  manner  as  the  International  Coun- 
cil may  determine,  provided  that  not 
more  than  one  member  shall  be  ap- 
pointed or  elected  fr^m  any  one  State  of 
the  League. 

Sec.  24.  The  Ministry  shall  choose 
its  own  presiding  officer. 

Sec.  25.  The  Ministry  shall  be  in 
permanent  session. 

Sec.  26.  The  Ministry  shall  be  re- 
sponsible to  and  removable  by  the  In- 
ternational Council. 

Sec.  27.  The  executive  powers  of 
the  International  Council  shall  be  vested 
in  the  Ministry. 

Sec.  28.  The  Ministry  shall  possess 
all  the  powers  of  the  International  Coun- 
cil when  the  International  Council  is  not 
in  session,  except  the  powers  vested  in 
the  International  Council  in  Sec.  19  of 
this  Convention. 


TEXT  SI 

Sec.  29.  The  Ministry  shall  have 
power  to  entertain  complaints  or  to 
initiate  investigations,  to  hold  prelimi- 
nary hearings  upon  any  question  in  dis- 
pute whether  formally  brought  before  it 
or  not,  to  adjust  the  same  if  possible, 
and,  on  its  own  initiative,  to  file  a  com- 
plaint with  the  International  Court,  or 
with  the  Council  of  Conciliation,  or  with 
existing  constitutions  at  The  Hague; 
provided  that  parties  to  a  dispute  may 
by  agreement  designate  the  tribunal  to 
which  a  question  may  be  referred,  and 
provided  further,  that  if  either  party  to 
a  dispute  files  a  claim  that  a  question  in 
dispute  is  justiciable  said  question  shall 
be  transmitted  to  the  International 
Court. 

Sec.  30.  The  Ministry,  when  in  its 
opinion  a  situation  has  arisen  likely  to 
endanger  peaceful  relations  between 
States,  whether  or  not  members  of  the 
League,  shall  report  immediately  to  the 
International  Council,  or,  if  the  Inter- 
national Council  be  not  in  session,  shall 
report  to  the  States  of  the  League  and 
call  the  International  Council  in  special 
session. 

Sec.  31.     The  Ministry,  when  the  use 


32  DRAFT  CONVENTION 

of  military  force  shall  have  been  deter- 
mined by  affirmative  action  on  the  part 
of  the  States  of  the  League  known  as 
Great  Powers,  shall  take  such  measures, 
including  the  appointment  of  a  War 
Council,  as  may  be  necessary  and  expedi- 
ent for  carrying  into  execution  the  pro- 
visions of  this  Convention. 

Sec.  32.  The  Ministry  may  apply  to 
the  International  Court  for  an  injunc- 
tion to  restrain  a  State  of  the  League 
from  committing  objectionable  acts 
pending  a  hearing  and  decision  or  rec- 
ommendation upon  a  question  in  dispute 
before  any  international  tribunal. 

Sec.  83.  The  expenses  of  action 
taken  pursuant  to  Sec.  3  of  this  Conven- 
tion shall  be  borne  by  the  States  of  the 
League  in  proportion  to  their  respective 
social  incomes,  as  determined  by  the  In- 
ternational Council. 

COUNCIL    OF    CONCII.IATION 

Sec.  34.  The  Council  of  Conciliation 
shall  be  constituted  of  one  member  of  the 
International  Council  from  each  State 
of  the  League  designated  by  the  appoint- 
ing State  as  the  Member  for  Concilia- 
tion. 


TEXT  S3 

Sec.  35.  The  Council  of  Concilia- 
tion shall  elect  its  own  presiding  officer. 

Sec.  36.  The  Council  of  Conciliation 
shall  have  power  toi  hear  and  make  rec- 
ommendations on  non-justiciable  ques- 
tions, and  upon  such  justiciable  ques- 
tions as  may  be  referred  to  it  by  the 
Court,  arising  between  States,  whether 
or  not  States  of  the  League  or  between 
A  corporation  or  an  individual  on  the 
one  side  and  a  State  on  the  other,  or  be- 
tween corporations  or  individuals;  but 
if  there  be  not  at  least  one  State  on  each 
side,  there  must  be  a  certificate  from  the 
Foreign  Office  of  the  State  of  such  cor- 
poration or  individual  to  the  effect  that 
the  question  is  of  international  conse- 
quence, with  the  exception,  however,  that 
no  such  certificate  shall  be  required  re- 
garding a  question  arising  in  conse- 
quence of  decisions  of  national  courts  in- 
volving foreigners. 

Sec.  37.  The  Council  of  Conciliation 
may  apply  to  the  International  Court 
for  an  injunction  to  restrain  a  State  of 
the  League  from  committing  objection- 
able acts  pending  a  hearing  and  recom- 
mendation upon  a  question  in  dispute 
before  it. 


34  DRAFT  CONVENTION 

Sec.  88.  The  Council  of  Conciliation 
may  institute  Sections  of  its  members 
and  may  refer  any  question  that  it  is 
authorized  to  hear  to  a  Section  for  hear- 
ing and  recommendation. 

Sec.  39.  The  recommendation  of  a 
Section  shall  be  the  recommendation  of 
the  Council  of  Conciliation  unless  a  liti- 
gant dissents,  whereupon  the  question 
shall  be  heard  and  recommendation  made 
by  the  Council  of  Conciliation. 

Sec  40.  The  recommendation  upon 
questions  heard  by  the  entire  Council  of 
Conciliation  shall  be  made  by  an  abso- 
lute majority  of  all  the  members  and,  in 
the  event  of  an  equal  division,  the  recom- 
mendation shall  be  reached  by  omitting 
the  member  from  the  State  last  adhering 
to  this  Convention. 

Sec.  41.  The  recommendation  upon 
questions  heard  by  a  section  of  the 
Council  of  Conciliation  shall  be  made  by 
an  absolute  majority  of  the  members 
hearing  the  question. 

Sec.  42.  The  Council  of  Conciliation 
shall,  in  each  case  submitted,  make  and 
file  a  recommendation  together  with  an 
opinion  giving  a  statement  of  the  case 


TEXT  35 

and  the  reasoning  upon  which  the  recom- 
mendation is  based. 


Article  III 


Sec.  43.  The  International  Court 
shall  consist  of  fifteen  judges. 

Sec.  44.  Not  more  than  two  of  the 
judges  shall  be  connected  with  any  one 
country  either  by  birth,  or  as  citizen  or 
subject;  but  with  that  exception  the 
judges  may  be  taken  from  any  State 
whether  or  not  a  State  of  the  League. 

Sec.  45.  The  judges  shall  reside  at 
the  permanent  seat  of  the  Court. 

Sec.  46.  Each  judge  shall  be  ap- 
pointed for  life,  save  that  on  arriving  at 
the  age  of  seventy  any  judge  may  retire 
from  active  service  with  a  pension  as 
hereinafter  provided,  and  save  also  that 
any  judge,  as  hereinafter  provided,  may 
be  displaced  for  cause  stated  and  shown 
and  further  provided  that  the  pension 

1  The  article  relating  to  the  Court  was  orig- 
inally drawn  by  a  sub-committee  consisting  of 
Everett  P.  Wheeler,  Eugene  F.  Wambaugh, 
George  Grafton  Wilson,  and  William  C.  Dennis. 


S6  DRAFT  CONVENTION 

shall  not  apply  unless  the  judge  has 
served  for  a  period  of  ten  years. 

Sec.  47.  The  judges  of  the  Interna- 
tional Court  shall  be  chosen  by  an  as- 
sembly of  judicial  electors,  provided 
however,  that  no  judicial  elector,  while 
in  service,  shall  be  chosen  as  a  judge. 

Sec.  48.  The  judicial  electors  shall 
be  appointed  by  the  States  of  the  League 
respectively  in  such  way  as  each  State 
may  determine. 

Sec.  49.  Each  of  the  States  of  the 
League  is  entitled  to  three  judicial  elec- 
tors. 

Sec.  50.  The  original  judicial  elec- 
tors shall  be  appointed  for  terms  respec- 
tively of  three,  six,  and  nine  years ;  and 
electors  appointed  to  fill  vacancies  shall 
be  appointed  for  a  term  of  nine  years. 

Sec.  51.  The  judicial  electors  shall 
meet  at  The  Hague  at  noon  on  the  first 
Monday  of  the  fourth  month  after  nine 
Powers  have  ratified  this  Convention. 

Sec.  52.  The  judicial  electors  shall 
elect  the  original  judges  of  the  Court 
from  among  candidates  nominated  by 
any  State  of  the  League  or  by  any  ju- 
dicial elector  acting  upon  his  own  initi- 
ative. 


TEXT  37 

Sec.  53.  In  balloting  for  judges  one 
judgeship  shall  be  filled  at  a  time. 

Sec.  54.  Before  entering  upon  his 
duties  each  member  of  the  assembly  of 
judicial  electors  shall  aver  upon  his 
honour  that  the  ballot  he  may  cast  is 
dictated  by  no  personal  interest  and  by 
no  consideration  for  or  against  any  per- 
son or  country  and  by  no  agreement, 
however  informal,  with  any  person  or 
country,  but  wholly  by  the  elector's  own 
earnest  desire  to  select  a  learned  and 
just  judge. 

Sec.  55.  Each  elector  is  entitled  to 
one  vote,  but  the  assembly  may  estab- 
lish a  system  of  preferential  voting 
whereby  each  elector  may  indicate  his 
first,  second,  and  third  choices,  and 
whereby  greater  weight  shall  attach  to 
a  first  choice  than  to  a  second  and 
greater  weight  to  a  second  than  to  a 
third. 

Sec.  56.  Unless  a  preferential  sys- 
tem of  voting  is  adopted,  no  candidate 
shall  be  declared  elected  unless  he  re- 
ceives an  absolute  majority  of  the  votes 
cast  for  the  persons  who  have  been  nomi- 
nated in  accordance  with  the  provisions 
contained  in  this  Convention,  and  for  this 


38  DRAFT  CONVENTION 

purpose  blank  ballots  shall  be  wholly  dis- 
regarded. 

Sec.  57.  The  assembly  of  judicial 
electors  shall  remain  in  session  until  the 
membership  of  the  Court  has  been  com- 
pleted by  the  election  of  a  sufficient  num- 
ber of  judges  and  by  the  acceptance  of 
election. 

Sec.  58.  When  the  original  Court 
has  been  completed  the  assembly  of  ju- 
dicial electors  shall  adjourn,  subject  to 
call  in  such  manner  as  it  may  provide. 

Sec.  59.  Whenever  there  is  a  vacancy 
in  the  Court  it  shall  be  filled  by  the  ju- 
dicial electors  in  such  manner  as  they 
may  determine. 

Sec.  60.  For  cause  stated  and  shown 
the  assembly  of  judicial  electors,  by  vote 
of  an  absolute  majority  of  those  present 
and  voting,  may  displace  any  judge  of 
the  Court. 

Sec.  61.  An  absolute  majority  of  the 
judicial  electors  appointed  shall  consti- 
tute a  quorum  for  all  purposes,  and  a 
smaller  number  may  adjourn  from  day 
to  day. 

Sec.  62.  The  Court  shall  be  compe- 
tent to  decide  not  only  disputes  of  a  jus- 
ticiable nature  arising  between  States  of 


TEXT  39 

the  League,  but  also  disputes  of  a  jus- 
ticiable nature  arising  between  States, 
whether  or  not  States  of  the  League,  or 
between  a  corporation  or  an  individual 
on  the  one  side  and  a  State  on  the  other, 
or  between  corporations  or  individuals ; 
but  if  there  be  not  at  least  one  State  on 
each  side,  there  must  be  a  certificate 
from  the  Foreign  Office  of  a  State  to  the 
effect  that  the  dispute  is  of  international 
consequence,  with  the  exception,  how- 
ever, that  no  such  certificate  shall  be  re- 
quired regarding  a  dispute  arising  in 
consequence  of  decisions  of  national 
courts  involving  foreigners. 

Sec.  63.  The  Court  shall  determine 
for  itself  whether  a  dispute  is  justiciable. 

Sec.  64f.  Except  as  provided  in  this 
Convention,  the  Court  shall  make  its  own 
rules  regarding  pleading  and  procedure. 

Sec.  65.  Unless  by  agreement  of  the 
parties,  no  judge  shall  sit  in  any  case 
in  which  he  has  a  personal  interest  or 
with  which  he  has  dealt  as  counsel  or  as 
judge,  or  in  which  a  State  whereof  he  is 
a  native  or  citizen  or  subject  is  a  liti- 
gant, or  in  which  a  native  or  citizen  or 
subject  or  corporation  of  such  State  is 
a  litigant,  or  in  which  a  litigant  is   a 


40  DRAFT  CONVENTION 

State  at  war  with  a  State  whereof  he  is 
a  native  or  citizen  or  subject,  or  in  which 
a  litigant  is  a  native  or  citizen  or  sub- 
ject or  corporation  of  a  State  at  war 
with  a  State  whereof  he  is  a  native  or 
citizen  or  subject. 

Sec.  66.  In  every  case  as  many 
judges  as  possible  shall  sit,  and  the  nxun- 
ber  of  judges  sitting  shall  never  be  less 
than  nine,  except  when  there  is  agree- 
ment of  the  Court  and  the  parties  to  the 
contrary,  and  except  when  judges  are 
disqualified  as  hereinbefore  provided. 

Sec.  67.  The  doctrines  of  law  recog- 
nized and  applied  by  the  International 
Court  shall  be  those  which  in  or  under 
future  conventions  may  be  provided  by 
the  States  of  the  League  or  those  which 
may  be  agreed  upon  by  the  very  liti- 
gants; and  in  the  absence  of  such  gen- 
eral provision  or  special  agreement  the 
Court  shall  follow  its  own  theory  of  jus- 
tice except  in  so  far  as  doctrines  have 
been  established  by  general  international 
law  or  have  been  embodied  in  the  Hague 
Conventions  of  1907. 

Sec.  68.  The  ultimate  decision  shall 
be  made  by  an  absolute  majority  of  the 
judges  sitting  in  the  case,  but  when  these 


TEXT  41 

judges  divide  equally  the  decision  shall 
be  reached  by  omitting  the  judge  last 
elected. 

Sec.  69.  The  ultimate  decision  shall 
be  promulgated  in  a  written  decree,  and 
the  decision  shall  be  accompanied  by  a 
written  opinion  giving  a  statement  of  the 
case  and  also  the  reasoning  upon  which 
the  decision  is  based. 

Sec.  70.  The  opinion  shall  bear  the 
name  of  the  judge  by  whom  it  is  written. 

Sec.  71.  The  opinion  shall  state 
what  judges  agree  with  it,  what  judges 
concur  in  the  decree  on  other  grounds, 
and  what  judges  dissent  from  the  decree. 

Sec.  7S.  The  salaries  of  the  judges 
of  the  International  Court  shall  be  equal 
and  shall  not  be  less  than  fifty  thousand 
dollars  each. 

Sec.  73.  Upon  retirement  for  age,  as 
hereinbefore  provided,  a  judge  shall  re- 
ceive an  annual  pension  equal  to  three- 
fifths  his  salary. 

Sec.  74.  The  Court  shall  appoint  its 
own  clerks  and  other  officials  and  fix 
their  salaries. 

Sec.  75.  The  Court  shall  have  power 
to  enjoin  a  State  of  the  League  from 
committing  objectionable  acts  pending  a 


42  DRAFT  CONVENTION 

decision  upon  any  question  in  dispute 
before  it;  injunction  may  also  be  issued 
by  the  Court  on  application  of  the  Coun- 
cil of  Conciliation  or  the  Ministry.  The 
injunction  shall  be  supported  by  the  eco- 
nomic or  military  forces,  or  both,  of  the 
States  of  the  League. 


Article  IV 

GENEEAIi    PROVISIONS 

Sec.  76.  The  permanent  seat  of  the 
International  Council  and  of  the  Inter- 
national Court  shall  be  at  The  Hague. 

Sec.  77.  Members  of  the  Interna- 
tional Council  and  members  of  the  Inter- 
national Court  shall  enjoy  diplomatic 
privileges  so  long  as  they  remain  in 
active  service. 

Sec.  78.  Before  assuming  office  each 
member  of  the  International  Council  and 
each  member  of  the  International  Court 
shall  make  oath  or  affirmation  to  obey 
and  support  this  Convention  and  to  per- 
form the  duties  of  his  office  without  fear 
or  favour. 

Sec.  79.  Members  of  the  Interna- 
tional Council  and  members  of  the  In- 


TEXT  43 

ternational  Court  shall  not  hold  any 
other  office,  or  engage  in  any  other  busi- 
ness, or  receive  any  compensation  other 
than  their  salaries  so  long  as  they  re- 
main in  active  service. 

Sec.  80.  The  International  Council, 
its  committees  and  sections,  and  the 
International  Court,  shall  have  power 
to  make  requisition  upon  States  of  the 
League  for  information  and  to  call  upon 
them  to  secure  the  attendance  of  wit- 
nesses. 

Sec.  81.  The  Council  of  Conciliation 
and  the  International  Court  shall  have 
power  to  summon  a  State  of  the  League 
to  appear  and  answer  any  complaint 
which  has  been  filed. 

Sec.  S2.  The  recommendation  of  the 
Council  of  Conciliation  and  the  decision 
of  the  International  Court  shall  be  made 
within  one  year  from  the  time  of  the  sub- 
mission of  the  question  in  dispute,  un- 
less, by  stipulation  of  the  parties,  the 
time  be  extended. 

Sec.  83.  There  shall  be  no  costs,  re- 
cording or  other  fees,  levied  against  a 
litigant  before  the  Council  of  Concili- 
ation or  before  the  International  Court. 

Sec.  84.     The  expenses  of  maintain- 


44  DRAFT  CONVENTION 

ing  the  International  Council  and  the 
International  Court  shall  be  borne  by 
the  States  of  the  League  in  proportion 
to  their  respective  social  incomes,  as  de- 
termined by  the  International  Council. 


Article  V 

INTERNATIONAL    CONFERENCES 

Sec.  85.  There  shall  be  Interna- 
tional Conferences  constituted  of  repre- 
sentatives from  the  States  which  were 
invited  to  the  Second  Hague  Conference, 
and  the  duties  of  the  Conference  shall  be 
to  codify  and  develop  international  law. 

Sec.  86.  The  International  Council 
shall  call  and  dissolve  the  Conferences. 

Sec.  87.  The  basis  of  representation 
in  the  Conferences  shall  be  units  of  pop- 
ulation and  commerce,  and  such  other 
elements  as  the  Conferences  may  deter- 
mine. 

Sec.  88.  The  acts  of  the  Conferences 
shall  be  binding  on  each  participant  un- 
less rejected  by  it  within  the  period  of 
one  year  after  the  adjournment  of  the 
Conference. 


TEXT  45 


AMPLIFICATION    OF    THE    COVENANT 

Note  I.  Subject  to  regulations  made 
by  the  International  Council,  the  Secre- 
tarial Bureau  shall  take  charge  of  and 
be  responsible  for  the  funds  belonging 
to  or  in  the  custody  of  the  International 
Council,  the  collection  of  all  receipts  due 
to  the  Council,  and  the  making  of  all  au- 
thorized payments ;  further,  the  Secre- 
tarial Bureau  shall  take  charge  of  and 
be  responsible  for  all  complaints  and 
other  papers,  books  and  other  docu- 
ments, belonging  to  or  in  the  custody  of 
the  International  Council;  transmit  all 
requisitions  for  information,  summons, 
subpoenas,  injunctions,  recommenda- 
tions and  all  other  necessary  communi- 
cations on  behalf  of  the  International 
Council  to  States  or  individuals ;  keep  an 
accurate  record  of  the  proceedings  of  the 
International  Council  and  publish  the 
Official  Journal,  all  recommendations  and 
opinions,  and  such  other  documents  as 
the  International  Council  may  from  time 
to  time  direct ;  make  record  of  all  papers 
filed  and  issued ;  make  translations  of  the 
record  of  the  proceedings  of  the  Inter- 
national Council  or  a  synopsis  thereof, 


46  DRAFT  CONVENTION 

recommendations,  opinions  and  such 
other  documents  as  the  International 
Council  may  direct,  and  communicate 
them  to  the  States  of  the  League, 

Note  II.     All  formal  complaints  shall 
be  filed  with  the  Secretarial  Bureau. 


THE    END 


^'A  00810' 


/-" 


^n& 

Xo 

dK  /<f6  7 

THE 

UNIVERSITY  OF  CALIFORNIA  UBRARY 

